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HomeMy WebLinkAbout10 - Introduction of an Accessory and Junior Accessory Dwelling Unit Ordinance (PA2019-248) - CorrespondenceReceived After Agenda Printed March 10, 2020 Item No. 10 Re: Item #10, Ordinance 2020-9 Dear Council Members: I am the co-founder of the Newport Beach chapter of Surfrider Foundation and former president of the board of the national organization. While no longer associated with the organization, I continue to support one of the main components of that organization's mission which is beach access. This is why I support staff's proposal to not eliminate parking requirements in the coastal zone for garage conversions. Eliminating parking requirements will impact beach access to those not living here. Beach parking lots fill up quickly in the summer, and street parking provides additional parking opportunities. If a garage is converted, that can mean three or four more cars parking on the street. That is three or four parking places lost to beach visitors, and it's not a one-to-one loss. Most of the visitors' cars are full of family and friends. If we lose four parking spaces, we can be denying access to over twenty people. Staff's proposal is well-balanced. Under the proposed ordinance, the city will still be providing opportunities for additional dwelling units and giving more people the opportunity to live here while protecting access of non-residents to what is their beach as much as it is ours. Nancy Gardner Received After Agenda Printed March 10, 2020 Item No. 10 March 10, 2020, City Council Item 10 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 10. Ordinance No. 2020-9: Introduction of an Accessory and Junior Accessory Dwelling Unit Ordinance (PA2019-248) General Comments Although the concept is not without its problems, for most of the hundred years or so in which the United States has recognized the right of government to limit the use of private land, most of the details of land use planning have been regarded as a local matter. Indeed, when the California legislature felt the need to adopt some broad planning principles to guide general law cities, it was with an apology in Government Code Section 65800 that "the Legislature declares that in enacting this chapter it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters." Particularly in view of the separate state mandate for cities, including charter ones, to revise their general plan housing elements to accommodate state specific state housing goals, the recent raft of state ADU regulations, claiming to be applicable to charter cities without their consent, intrude uncomfortably into the local domain. Even if one accepts a need for cities to facilitate the achievement of state housing goals, Newport Beach has not even begun its housing element update, and ADU's may or may not be the preferred way, in our particular local context, of assisting the state in meeting its goals. Yet the state laws give us no latitude to adjust the planning of ADU's to our local conditions. In view of all these concerns, I feel some of the opening "Whereas" clauses of the proposed ordinance and resolution (staff report page 10-9 and 10-23) make premature announcements of the City's (as yet undetermined) conclusions regarding local housing solutions and ADU's role in them. In effect, if adopted as written, the Council seems to be embracing the state's reasoning without our own Housing Element Update Committee having had a chance to weigh in. I would delete the paragraphs 3 through 5 on page 10-9 and the same three paragraphs on page 10-24 (5 though 7, there). They do not seem necessary. Two additional concerns are: The resolutions rely on a 1983 statute exempting the adoption of ordinances allowing the construction of second units from CEQA review (Public Resources Code Section 21080.17). But what the new state rules allow in the way of ADU's is far for expansive than it was in 1983, and the potential impact of ADU's, if they were all constructed as allowed, is clearly large. Yet there is no review or attempt to mitigate the impacts now. Nor will there be any review when individual projects are approved, since the approval will be ministerial. 2. The opening paragraphs of the revised statewide ADU code, specifically Gov. Code Sec. 65852.2(a)(1)(A), give cities latitude to designate the areas in which ADU's should be allowed "based on the adequacy of water and sewer services and the impact of March 10, 2020, City Council Item 10 Comments - Jim Mosher Page 2 of 3 accessory dwelling units on traffic flow and public safety," and where other agencies provide water or sewer services, requires them to consult with those agencies as to the adequacy of those services. Since the present proposal designates the residential areas of the whole city as suitable for development of ADU's, the implication is that in adopting the ordinance the City is affirming the services are adequate throughout the city, including traffic and safety, and that the consultation has taken place. Yet the public has not seen such studies or consultations. Regarding the Staff Report As to what is being proposed, the staff report includes a very useful Appendix G (pages 10-81 and 10-82), which was requested, but not seen by, the Planning Commission. It details how the proposal deviates from the default state ADU approval requirements that have been in effect since January 1. It looks like the proposed regulations are stricter than the do-nothing option, and the strictest allowed by the new state law in all respects except for ADU's build over detached garages. In that case, we allow them to go to the maximum non -discretionary height permitted in the district, where the state law would allow them to be limited to a maximum of 16 feet.' The present staff report includes other helpful material not seen by the Planning Commission, such as the HCD memo showing the text of the current state laws, as well as the minutes of the PC meeting, but it does not include written comments received and reviewed by them (mentioned at the bottom on page 10-2) and on the basis of which some changes were made. Another thing not provided is the California Coastal Commission Guidance Memorandums referenced on page 10-77. Those seem particularly important since although the Legislature has in Gov. Code Sec. 65852.22 allowed, and indeed required, any local ADU ordinance to override any contrary provisions of a city's general plan or zoning code, it does not give coastal cities the authority to override their LCP's.3 Regarding the Proposal This is at least the fourth time in recent years that the City has attempted to revise its ordinances in response to changing state rules.4 ' This emphasizes the difficulty of the Legislature trying to impose uniform statewide regulations: heights are measured differently in different jurisdictions, so 16 feet" means something different in different places, preserving a tiny modicum of local control. 2 Interestingly, the revised JADU statute codified in Gov. Code Sec. 65852.22 requires cities to adopt an ordinance or accept its standards, but it says nothing I can find about those standards being automatically deemed consistent with contrary standards in a city's general plan or zoning code. 3 Two CCC guidance memoranda dating from 2017 are linked to from the HCD ADU page and from the CCC's Resources for Local Governments page. They recommend maximum compliance consistent with the Coastal Act and do not appear to have been updated since. 4 See July 25, 2017, Item 19; September 11, 2018, Item 12; January 22, 2019, Item 13. March 10, 2020, City Council Item 10 Comments - Jim Mosher Page 3 of 3 Throughout the process, staff has struggled with integrating the ADU regulations into the pre- existing allowable land use tables for the various zoning districts and largely ignoring the possible different physical development standards they have from other structures in those districts. At one time ADU's were added to the definitions of the R-1 and R -A districts (see page 54 of Item 17 from July 25, 2017), then removed (see page 64 of Item 12 from September 11, 2018). The present proposal continues this effort, which I think is more difficult than staff seems to realize and ultimately unnecessary since the new Sections 20.48.200.0 (page 10-13) and Sections 21.48.200.0 (page 10-27) say that ADU's that conform to the standards of those sections are deemed consistent with the remainder of the title, regardless of what the remainder says. Rather than attempting to amend the tables, I would leave ADU's out of all the tables, and simply add a note to Subsection 20.16.020.A (and 21.16.020.A) saying that ADU's and JADU's are an allowed use in the residential portions of all districts per Section 20.48.200 (and 21.48.200). Similarly, I would add to Subsection 20.16.020.0 (and 21.16.020.C) a note that the development standards for AUD's and JAUD's may override other standards for the district per Section 20.48.200 (and 21.48.200). As it is, while ADU's have been added to some of the tables by the proposal, staff has forgotten Planned Community Districts,5 including the enumeration of allowed uses in them in Section 21.26.045, and the development standards in the section that follows. In addition, we have inconsistencies such as a statement about the effect of ADU's (but not JADU's) on "Density/Intensity" in Title 20 Table 2-2, but not in Table 2-3 (and others where they are now allowed). Trivial Comment The preamble to the ordinance contains clear grammatical errors in paragraph 4 on page 10-11: "WHEREAS, at the hearing, the Planning Commission adopted Resolution No. PC2020-006 by a majority vote (5 ayes, 1 no) recommending e the City Council review Zoning Code Amendment No. CA 2019-009 and approve it if the terms of the code amendment retained greater local control over accessory dwelling units and junior accessory dwelling units than what is provided by Government Code Sections 65852.2 and 65852.22;" The same comment applies to the very similar paragraph 5 on page 10-25. 5 The allowed uses in Planned Communities fall into a kind of black hole in the Zoning Code as revised in 2016. They are defined as a "Special Use District" in Sec. 20.26,010. B, for which Sec. 20.16.020.A assures readers the allowable uses are found in Chapter 20.26. But they are not. Any former explanation of what is allowed in PC Districts was moved, instead, to Chapter 20.56. In that former code, the allowable uses and standards in PC Districts were enumerated in the same format as the other districts (see pages 25 and 44 of Ordinance No. 97-9). 0:':CALIFORNIANS FOR HOMEOWNERSHIP March 10, 2020 VIA EMAIL City Council City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Email: citycouncil@newportbeachca.gov RE: March 10, 2020 City Council Meeting, Agenda Item 10 To the City Council: Received After Agenda Printed March 10, 2020 Item No. 10 MATTHEW GELFAND, COUNSEL MATT@ CAFORHO M ES.ORG TEL: (213) 739-8206 Californians for Homeownership is a 501(c)(3) non-profit organization devoted to using legal tools to address California's housing crisis. I am writing as part of our work monitoring local compliance with California's laws regarding accessory dwelling units (ADUs). At your March 10 meeting, you will consider an ordinance intended to address recent changes to state ADU law. If the City adopts a compliant ADU ordinance, it will be able to maintain certain local controls on ADU development. The City's ordinance is generally good, but we have a few concerns about it: • The draft ordinance purports to apply all of the City's normal zoning standards, including overlay district standards, to ADUs. Unless these are objective standards that can be applied through a totally ministerial process, with no hearing or discretionary review, within 60 days, this is not allowed. Gov. Code § 65852.2(a)(3). The draft language should be clarified, if necessary, to exempt ADUs from any standards that do not fall within these limits. ;his The draft ordinance requires attached ADUs to conform to generally applicable setback rules. is unlawful. For ggy ADU that is not a conversion or rebuild, the maximum side and rear setbacks are four feet. Gov. Code § 65852.2(a)(1)(D)(vii). • The draft ordinance sets a maximum of two bedrooms per ADU. We understand that the state Department of Housing and Community Development (HCD)'s interpretation is that the law does not allow bedroom count limitations. • The draft ordinance prohibits providing the required parking for the ADU in a rear setback abutting an alley. Attachment G to the City's staff report suggests that this is designed to 525 S. Virgil Avenue Los Angeles, CA 90020 March 10, 2020 Page 2 mitigate traffic safety concerns. But state law generally requires that cities allow homeowners to accommodate required parking for the ADU in any setback area, not just the front setback. Gov. Code § 65852.2(a)(1)(D)(x)(II). Because the City's proposed restriction applies regardless of whether there is adequate space to park a vehicle, it is overbroad and unlawful. The City can, of course, create a reasonable definition for an adequate parking stall and require that parking spaces that include a portion of the rear setback comply with that definition. • The draft ordinance does not provide the required special treatment for the categories of ADUs listed in Government Code Section 65852.2(e)(1). These ADUs must be ministerially permitted "notwithstanding" the provisions allowing cities to pass local ADU ordinances, meaning that these ADUs must be approved without applying �Lny local development standards, such as front -yard setbacks. According to guidance from HCD regarding the prior version of Section 65852.2(e), these ADUs "do[] not necessitate a zoning clearance and must not be limited to certain zones or areas or subject to height, lot size, lot coverage, unit size, architectural review, landscape or parking requirements," and the Department has issued non-compliance letters to cities that have improperly applied local development standards to these ADUs. To assist the City in crafting appropriate language, we are providing (below) example language based on ordinances adopted by other cities. To avoid having its ordinance deemed non-compliant by HCD, we suggest that the City make changes to the draft ordinance to address these concerns. Sincerely, Matthew Gelfand cc: Seimone Jurjis, Comm. Dev. Director (by email to sjurjis@newportbeachca.gov) David Blumenthal, Planning Consultant (by email to dblumenthal@newportbeachca.gov) 525 S. Virgil Avenue Los Angeles, CA 90020 CALIFORNIANS FOR HOMEOWNERSHIP March 10, 2020 Page 3 Example Language For Government Code Section 65852.2(e)(1) ADUs Units Subject to Limited Standards. Notwithstanding [the other sections of the local ADU ordinance], accessory dwelling unit and junior accessory dwelling unit permits shall be issued based solely on the standards set forth in this section and all applicable Building Code standards, as follows: (a) Internal ADUs. One accessory dwelling unit or junior accessory dwelling unit per lot with a proposed or existing single-family dwelling if all of the following apply: (1) The ADU or JADU unit is within the proposed space of a single-family dwelling or existing space of a single-family dwelling or accessory structure and may include an expansion of not more than 150 square feet beyond the same physical dimensions as the existing accessory structure. An expansion beyond the physical dimensions of the existing accessory structure shall be limited to accommodating ingress and egress. (2) The space has exterior access from the proposed or existing single-family dwelling. (3) The side and rear setbacks are sufficient for fire and safety. (4) The JADU complies with the requirements of Section 65852.22. (b) Detached ADUs. One detached, new construction, ADU that does not exceed four -foot side and rear yard setbacks for a lot with a proposed or existing single-family dwelling. The ADU may be combined with a JADU described in subsection (a)(1) of this section. A local agency may impose the following conditions on the accessory dwelling unit: (1) A total floor area limitation of not more than 800 square feet. (2) A height limitation of 16 feet. (c) Multifamily Dwelling ADUs (1) Multiple ADUs within the portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each unit complies with state building standards for dwellings. (2) A local agency shall allow at least one ADU within an existing multifamily dwelling and shall allow up to 25 percent of the existing multifamily dwelling units. (d) Not more than two ADUs that are located on a lot that has an existing multifamily dwelling but are detached from that multifamily dwelling and are subject to a height limit of 16 feet and four -foot rear yard and side setbacks. (e) Rentals of ADU and JADU permitted pursuant to this section shall be for a term longer than 30 days. (f) Installation of fire sprinklers are not required in an ADU or JADU if sprinklers are not required for the primary residence. (g) ADUs and JADUs permitted under this section shall not be required to install a new or separate utility connection directly between the ADU and the utility nor shall a related connection fee or capacity be charged unless the ADU or JADU is proposed to be constructed with a new single-family home. 525 S. Virgil Avenue Los Angeles, CA 90020 CALIFORNIANS FOR HOMEOWNERSHIP Received After Agenda Printed March 10, 2020 Item No. 10 March 10, 2020, City Council Item 10 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@-yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 10. Ordinance No. 2020-9: Introduction of an Accessory and Junior Accessory Dwelling Unit Ordinance (PA2019-248) Additional Suggested Changes to Item 10 Page 10-6: "In addition, notice of the proposed amendments was published in the Daily Pilot as an ecghg ei_phth-page advertisement, consistent with the provisions of the NBMC." Page 10-9: "WHEREAS, the California Legislature adopted and Governor Newsom signed Senate Bill 13 and Assembly Bills 68 and 881 in 2019 amending California Government Code Sections 65852.2 and 65852.22, which took effect January 1, 2020, imposing new limitations on local agencies', including charter cities', ability to regulate accessory dwelling units and junior accessory dwelling units;" Page 10-9: "WHEREAS, Section 20.48.200 (Accessory Dwelling Units) of the Newport Beach Municipal Code ("NBMC') regulating accessory dwelling units, most recently amended in 2018 2019 pursuant to Ordinance No. 2018-14, is partially inconsistent with Government Code Sections 65852.2 and 65852.22;" Page 10-10: "WHEREAS, Government Code Section 65852.2(a)(1)(D)(xi) provides that offstreet parking shall not be required to be replaced when a garage, carport, or other covered parking is converted to an accessory dwelling unit a -Rd or junior accessory dwelling unit, however, the California Coastal Act of 1976 is neither superseded nor in any way altered or lessened as provided in Government Code Section 65852.2(1) by this recent legislation;" Page 10-14: "D. Maximum Number of Units Allowed. The following is the maximum number of accessory dwelling units and/or junior accessory dwelling units allowed on any residential lot. Unless specified below, only one (1) category may be used per lot." [Are we sure? This interpretation is not obvious from the state code. It could equally well be read to say a multi- family lot can have non -livable interior space converted to at least one ADU and up to 25% of the existing number of units plus two detached ADU's elsewhere on the lot.] Page 10-14: "3. Conversion of Multi -Unit Dwelling. Multiple accessory dwelling units may be permitted by conversion of existing space on lots with existing multi -unit dwellings subject to the following:" [Captions in our code aren't legally significant. Operative provisions need to be stated in the text.] Page 10-16: "a. The accessory dwelling unit meets the minimum setbacks required by the underlying zoning district, and' Page 10-17: "8. Parking. Parking shall comply with the requirements of Chapter 20.40 (Off - Street Parking) except as modified below.- a. elow. a. No additional parking shall be required for junior accessory dwelling units March 10, 2020, City Council Item 10 Additional Comments - Jim Mosher Page 2 of 2 b. A maximu Except as provided below, one (1) parking space shall be required for each accessory dwelling unit with a bedroom." [The reference, above, to Chapter 20.40 is a circular one. For ADU's, Table 3-10 (in Chapter 20.40) simply refers reads to the present section on ADU's (20.48.200). In any event, saying what the maximum the City may require does not provide an objective standard as to how many the City does require. And I believe the state parking requirement is misstated. The maximum that can be required is 1 per ADU or bedroom, whichever is less (see near top of page 10-41). 1 take this to mean the state sees the possibility of a "studio" ADU with full living facilities (hence not a JADU), but no bedroom. For such a no - bedroom ADU, it appears there is no parking requirement.] Page 10-17: "iii. Accessory dwelling units located within an architecturally and historically significant historic district;" [Since the state code does not appear to define "an architecturally and historically significant historic district" (see page 10-45), applying this exemption from the parking standard requires a distinctly non -ministerial judgment on the part of City staff, and can only lead to debate and confusion. It needs to be clarified or omitted.] Similar corrections to the LCP resolution are undoubtedly needed. Clarifications to Attachment G (page 10-81) Zone: In addition to the zoning districts listed, the state code presumably requires ADU's in the residential portions of PC (Planned Community) districts, which constitute a large part of Newport Beach dwellings. Number of Units Allowed: My understanding is that in single-family areas it is "One ADU, one JADU or one detached ADU and one JADU." On multi -family lots, I believe it is "25% of the existing units" (but at least one) when converting existing non -livable space to ADU's or two detached ADU's or possibly both. Maximum Unit Size: I believe the 850 sf is for zero or one bedroom. Side and Rear Setback: The proposed page 10-14 confusingly says they only have to comply with Titles 9 and 15, not Title 20. Parking: I believe the standard for ADU's is mis-stated. It is one space per ADU or bedroom, whichever is less (see above).